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tv   Key Capitol Hill Hearings  CSPAN  October 25, 2013 10:00am-12:01pm EDT

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invitation to be here and be on this esteemed panel. i'm very honored to do so. i've had ten years of experience with cameras in the courtroom at the highest level of the supreme court of ohio, and i have to concur that grandstanding is nonexistent as a response to having cameras in the courtroom. the cameras are so unobtrusive that i think both the litigants and the public that enters into our courtroom don't even realize that they are being filmed. and i have to say we have more than 200 seats in our courtroom for the public to come in and be able to observe. they don't need a ticket. they just, you know, come in. at times we've had standing room only, and at times we've had overflow rooms that because of technology we have been able to accommodate those that show up and want to listen to one of our oral arguments or more and do so with ease at very little
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inconvenience to anyone involved. and i understand, as judge starr has mentioned, there's a difference of opinion on whether or not there should be cameras in the courtroom, but i have to say addressing cameras in the courtroom for the united states supreme court i respectfully disagree with their posture and their position on in this. now, why is this important? one of the reasons it's important is because the public cares. the public wants to see cameras, they want to see what is happening in our courtrooms as they want to see what the transparency will provide with every branch of our government. and that's extremely critical. you know, the public receives information now in a way that is totally transformed and morphed is instantaneous communication. and that is a good thing, i believe, in many, many respects. the downside of that can be dealt with, but there is no downside to having that kind of
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exposure to the oral arguments that are being conducted. in fact, all 50 states' supreme courts allow for cameras in the courtroom. there are certain restrictions in about 14 states with regard to access to the trial courts, and there's a distinction in some instances between civil access and, i mean, access in civil cases and access in criminal cases. but again, that is a state by state determination to be made by the judiciary and overall what we're addressing here is the access to the united states supreme court. think back, you know, judge starr mentioned the flag burning cases, but in the last year we've had monouniterral cases -- monumental cases of tremendous public import being decided by the united states supreme court. we've had the affordable health care act, how many people in this country will be impacted by that decision? we then fast forward to march of this year, and we had the same-sex marriage issues. again, monumental decisions that impact the quality of life for
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so many of our citizens, and yet what are we able to view with regards to those arguments? the ones in march the only thing we could see were masses huddled outside of the supreme court waiting in line if they were fortunate enough to be able to secure a ticket to actually go in there. you know, instead of seeing lawyering, you know, superior advocacy and the interaction of the justices with those advocates and with one another to pull back the curtain, so to speak, and allow the american public to see a branch of government in operation deciding cases that will so significantly impact the lives of our citizens and the future of our children in this country. and i think that that alone is a reason to have that sort of exposure. you know, what's the flipside? what kind of exposure do we have to the united states supreme court? we have, and no disrespect to the reporters in the room, but
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we have individuals filtering the information and oftentimes they themselves have not been in the courtroom to observe what happens. the timeliness of the information, you know, is also, or i should say the staleness of the information is also a problem, getting that very, very important information to the public. so to me as a lawyer, to me as a justice and to me as a citizen of this country, that's unacceptable access to a very important branch of our government. as i said, public expectations about how they require or acquire foj and understand the -- knowledge and understand the world has undergone a radical metamorphosis, and we need to keep up with the times. all institutions do, especially government institutions. i now, there's about three reasons that i'm just going to talk about briefly, and one has already been addressed, and that
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is the grandstanding. as i said, in the ten years that we have broadcast live our oral arguments in ohio -- and we've had many, many significant cases in the courtroom -- we've never, well, i do say this was one instance what an attorney acknowledged that they were on camera and turned around and said for the benefit of the audience, i would like to start by saying -- and then our chief justice at the time said the only audience you should be concerned with are the seven members in front of you. [laughter] and that put a quick end to that, and that was the only incident that i can to think of in our ten-plus years of having oral arguments live. we have the benefit of having those archived so that they can be teaching tools. they are teaching tools if for both the law schools and litigants who will come before the court and want to learn how to improve their skill. it is an absolutely wonderful opportunity to do that. we have a process in the court,
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our court in ohio, where we archive the oral arguments, but we also have all of the briefs online so that the underpinnings of the case, if you will, are accessible to the public and to anybody who would like to view them. we have the oral arguments, we have those archived, and then when our opinions come out, those, of course, are available online as well. so it's from soup to nuts, start to finish. you can, we are totally transparent with our cases. the second argument that's proffered by members of the supreme court is the public just won't understand what they're watching. they won't understand the process. to me, that's somewhat an elitist view of our operation as judges and justices. without cameras the united states supreme court is missing out on a huge opportunity to foster greater public understanding of our judicial branch. let's help the public understand instead of keep them in the dark
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about the operation of the highest appellate court in the jurisdiction. our public is, you know, charged with the responsibility of electing public officials, chargessed -- charged with the responsibility of following the law, charged with the responsibility of being good citizens, and yet we hide from them the operation of our highest, one of our -- the highest court in our judicial branch, and that does not comport with their civic responsibilities. americans deserve the opportunity to witness our government in action is and not be forced, as i said, to use the filter of media in order to access their government. transparency is another -- and i get the strong impression that the justices don't want to personally be that transparent, that recognizable, that, have that kind of celebrity maybe
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attached to their persona and what they do. and i say that the american public has the right to know who their justices are and be able to recognize their justices just as they do their city council members, their mayors, their governors, their united states senators, their congress people and their state legislators as well as their governors. we are all public servants, paris and foremost, whether you are chief justice of the united states supreme court, chief justice of the ohio supreme court or a member of our legislative branch or executive branch. we are in place, we are holding these honored positions for to reason other than to serve the public. we are institutions that serve the public, and we should be transparent to the public, and i feel very, very strongly about doing that. i think that the more transparency our government has, the greater the opportunity we have for understanding and
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hopefully accommodation and acceptance. because we are a diverse nation. there are no two ways about that. recent washington activity has etch sized that -- emphasized that. the decisions that come are are the supreme court are dealing with cases and topics that are so polarizing that if we continue to have this veil of secrecy about how the judiciary does their job and the exposure of the actual underpinnings of these decisions, i think that it does not bode well for the level of confidence that our public should have in the workings of our branch, our judicial branch of government. i am very much in favor of having cameras, and i think that the arguments are much more heavily weighted in the direction of putting cameras in the courtroom, having exposure
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and accessibility than continuing this 19th century mode of how we dispense justice in this country. thank you. >> neal. >> so i think i'm going to situate my remarks in between tony and judge starr's. tony's list of grievances about the court and judge starr's claim that cameras and floor coverage is the right way to go. and let me just say, this is my first time appearing on a panel with judge starr since i left the solicitor general's office, and it was a real privilege, because while i was there i learned just what a great job you do, and maybe the public should learn more about that too. in any event, let me start by saying i think the supreme court, there is something really majestic to celebrate about this. every time i go in there to argue a case or watch a case, i feel like it's a temple of truth, and you are seeing nine of our smartest people, top
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lawyers, top jurists arguing with one another in a reasoned, powerful way. and it is truly awe inspiring to watch. and that's true not just in the oral arguments, but in the written decisions as well which, of course, are more transparent than the other branches. when ever they make a decision, they're arguing with one another vehemently down to the point of footnote 42, one opinion responding to footnote 19 in the other. so you have already a sense of transparency in the supreme court that you don't actually have in the other branches. you know, i remember my last day at the justice department was the day that the arizona campaign finance case was being handed down, and the chief justice began his opinion striking down the arizona campaign finance scheme. and then justice kagan, writing her first big, major dissent as
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a justice, giving her powerful answer to the chief's terrific opinion. and this back and forth among them was just so wonderful to watch, and i share the sentiment of the panel that i wish that more americans could see it. it's a pity that americans don't get to see it. particularly in an era when, you know, the other branches don't work quite as well. we've had a shutdown in congress for 16 days, we have very little of that reasoned deliberation that we see in the supreme court happening in congress, at least visibly. and, boy, they have something really to teach us. it is surprising that congress' approval ratings since 2005 have never gone above 40%, the supreme court's approval ratings by contrast have never gone below 40%. so that leads some to think, well, the solution is let's order the supreme court to have cameras in the courtroom, and i guess i'd issue a cautionary note about that.
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i at least can't presume to tell the justices what to do. i take it that they believe that their situation is different than the states' supreme court experience either because of the kind of cases that come before them or, frankly, just their own personalities. and for that reason, they have raised some concerns. and the concerns i don't think are just of the grandstanding of the litigants' variety, i think they genuinely are concerned that some of them will play to the crowd instead of trying to further that temple for truth. now, that may be an idiosyncratic decision just about the current people on the court and the current personalities, and everyone's saying, look, we're really worried about this. the system is working pretty well, maybe we shouldn't change it. the one thing i can tell you i know something about is litigating before the court. and, you know, i stood up and gave my 18th argument last week. i tell ya, it's a pretty nerve-wracking experience.
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and i remember when i did my first argument, which was a very big one, and the court announced that they were going to have audio release right after the argument, literally as the argument concluded, i was arguing my case against the solicitor general who had done 35 cases, it was my first, i was really worried that, oh, my friends, my enemies are going to listen to that, and it'll be played on jon stewart and this and that -- [laughter] you know, that is something to worry about. it's true even for experienced advocates that you get nervous when you're up there. the idea that you're going to have televised every foible and fumble i do think is going to impact things. does that mean we shouldn't have cameras? i don't think so. if i could wave my wand and convince them to do so, the unbelievable cost from the civic education -- benefits from the civic education perspective are there. they're undeniable. but with these nine, they might
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come to a different conclusion. so my final thing to say is the good news here is i do think this is generational, and i do think it is inevitable that cameras will be in the supreme court. that is my generation, we're used to having cameras all the time. the default is we're being recorded. we use the phones that have cameras and cameras everywhere taking pictures of us, and with the rise of google glass, we'll always be on camera. so the supreme court will look extremely idiosyncratic to be the one place in which it's a camera-free zone. so i share the chief justice's view that the court should keep up with the times. i think that's invariably going to happen, and it's a question of the personalityies on the court and who's comfortable and who's not. >> having watched you on the supreme court, i don't think you have to worry about your foibles, i can't remember any. this is one place where the court has backtracked.
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our requests have produced a result that is developing. [laughter] beginning with the historic cases in 2000 that settled the presidential election between george bush and al gore, the court did start to release audio recordings of the oral arguments within an hour or so. and the court continued to do something similar with the audio, releasing it for the high profile cases of the term and putting it out shortly after the arguments were over that same day. but then two years ago there was a change. you've heard a little, but let me just go into a little more detail about in this. the court stopped doing that and said from then on it would not put itself in the position of deciding which were the high profile cases, which were enough to merit that treatment. so it would post the audio of each week's argument on the court web site on friday which allowed the court to say that it was actually increasing public access to the court at the same time, as tony pointed out, it drained them of any fuse value. it has kept -- news value.
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it has kept that policy with just a few exceptions, the one was the arguments over obamacare and the voting rights act. that ought to give you some idea of how the current justices feel. it's quite clear it's not going to happen anytime soon even though there is a pilot project on civil trials in the federal district courts, and they're not going to change the audio policy either even though many of the federal appellate courts now regularly post the audio of their argument sessions. for example, here in washington you can go on the court of appeals web site for the district of columbia, and you can hear the oral argument audio from that week's cases. some of the current justices have said they worry that sound bites of oral arguments would be taken out of context and could be misleading. and other justices have said that if the supreme court accepts cameras, then that will force the lower courts into accepting them too. and still others have said they're wary about any changes
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at all in the institution because they simply don't know how cameras would affect the supreme court's functioning. now, you talk about a possible generational shift, we watched with interest justice zone that sotomayor talk about this issue during her confirmation hearing, and she sounded very favorably inclined. she said she had volunteered as a judge to allow cameras in her courtrooms for pilot projects, and she said the experiences were positive. is she suggested that if she were confirmed, she might express that view to her colleagues in their internal discussions if the subject came up. she appears to have changed her mind. [laughter] there is little doubt that allowing public access to oral argument would, i think, deepen understanding of the court, and i say the same thing each term. if this argument is fascinating, i wish people could see it for themselves. and there's no doubt that c-span, hello, c-span be, would televise their arguments in their entirety, and the other
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cable networks would, obviously, show it. not the whole thing, extended excerpts. now, justice scalia is the most outspoken about tv coverage. he says if it was allowed, most people would never watch the swire one-hour argument and would instead rely on what he calls snippets on the evening news. and as a snippet meister myself, i can tell you that's undoubtedly true. [laughter] but it's hard to see how that is a reason to keep cameras out of the court. after all, reports on oral argument that appear the next morning in the newspaper by robert barnes of "the washington post" or richard wolf from "usa today," they are just going to have snippets too, that is quotations of the -- that's the print equivalent of a snippet. their newspapers and the ap sell them the entire transcript of an oral argument. [laughter] thank you very much, thank you. [laughter] the video clips that would be broadcast on the news programs
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would actually be more vivid, it is a to say more faithful to the original of what was said in the court. so perhaps that's why justice scalia objects, but it does seem to me an odd argument against cameras to say that the snippets on tv would be more truly representative of what happened during the oral argument and that's why we shouldn't allow them. we've long grown accustomed to what justice scalia calls snippets. they started appearing a century ago in the movie newsreels, and we've seen them for decades on television coverage of presidential speeches and news conference and congressional debate. viewers understand what a snippet is just as they understand what a quotation is in a newspaper. justice breyer talked about television coverage earlier this year when he was testifying before a house committee on the court's budget, and i thought this was very illuminating of. he said that he has become convinced that it influence not the judge -- not the lawyers
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from grandstanding, but the way members of the court, including himself, might conduct themselves during oral argument. so permit me to quote a snippet of what he said in his testimony. here's what he said. quote: people come to me and say, be careful, you think it won't affect your questioning. they say, the first time you see on prime time television somebody taking a picture of you and using it in a way that you think is completely unfair and misses your point in order to caricature what you're trying to do because they don't believe in the side they think you're coming from, the next day you'll watch a lot more carefully what you say. now, that's what's worrying me. so i used to think that the main reason the justices opposed tv coverage was, as you implied, chief justice, that they didn't want to be hassled in the line at star pucks. and now i think -- starbucks. and now i think, and i'm quite serious, they fear being made fun of by jon stewart on the
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daily show. >> alan? >> well, i agree with everything that's been said, but i'm a realist and incrementalist. so let me propose a high-tech solution. how about radio? and how about radio starting with the decisions that they read from the bench which can't possibly involve an element of grandstanding since the justices have prepared what they're going to say in advance. it would also enable people to sit in their offices and not have to trudge up to the supreme court when the decisions are coming down. it doesn't come down today, it comes down tomorrow or the next day. they already have audio, instantaneous audio. it goes into the supreme court lawyers' lounge. all they have to do is to to hook it up to either the internet or a radio station, and there we've all got it. and then having tried that, they could go on to hear every oral argument on the same way. second, let me talk about recusal. and let me make a suggestion.
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not that the congress pass laws requiring statements of reasons, although i would support that, i suggest something rather simple. i suggest what we used to call at camp in the boy scouts a buddy system. and when somebody has suggested that a justice recuse him or herself, that you have a partner. pete and i would be together, and you would agree with me that every time somebody suggested you have a recusal, you'd be recused. you would come talk to me before you tell anybody what your answer is, and i promise to do the same to you. and it would be better if you were ideologically on other sides so there would be no strategy about, oh, please, step off this case so we get a 4-4 tie. and i think if the justices did that, there would be a lot more feeling that this was not an individual decision, that it was somehow collectively made.
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and the idea of talking to someone you respect and have to work with every day k i think, would have quite a leavening influence on the issue of recusal. third point i want to make is a different point than has been made before on a different subject. i have been very troubled in the last couple of months about all this talk about justice ginsburg stepping aside, and she should do in this for the good of the country. -- do this for the good of the country, and that all of the people who think that maybe the democrats won't control the presidency and, therefore, to keep the majority or keep the votes the way they are, she should step aside. i think what justice ginsburg does is her own business, and i wouldn't purport to tell her what to do or what not to do. and i think it's quite unseemly we're having this discussion. but the reason we're having this discussion is that the justices have life tenure. they could stay as long as they
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want, and we know that the practice is one with very few exceptions of strategic retirement. several years ago i was privileged to be one of the co-authors of a book by roger crampton and paul carrington which talked about, it set up a system for having term limits for supreme court justices enacted by statute under which they would have 18-year terms, staggered two-year terms, so that every president would get two appointees, and there would be no strategic retirements. the justices would become senior justices, they would be paid in full, and by the way, if there were any recusals -- which there probably won't be very many -- you would have a supreme court justice ready to sit in and step in for them. thanks. >> may i just say one thing about the opinion handdown announcement. for those of you who haven't been in the court, when the court has a decision, whoever wrote the majority decision can summarizes the decision. now, we've asked why can't we
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get the audio of that, because as you all know if you've ever heard it, it's usually pretty good and sometimes quite vivid, quite alive, pretty juicy. and what we've been told, i'm struggling here to describe how we've billion told, i'll simply say by authoritative members of the court -- [laughter] is that it ain't gonna happen for this reason. what they say is when there's a decision, the published opinion of the court, they've seen that. they go back and forth. today all know what it's going to say. but if there's, for example, a 6-3 decision, the other fife justices -- five justices don't really know how the writer of the majority opinion is going to summarize it. and sometimes members of the court have told us as they sit there and listen to the announcement being summarized, they say to themselves, wait a minute, that's not what i signed on to. [laughter] so what we've been told is if that -- that's not going the happen simply because it would require too much comity on the
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court for them to sort of massage that and agree to it all, and it would, you know, it would complicate things. so just a little further insight. >> just to be clear, i mean, you don't have to trudge up to the supreme court every day to find out whether your case has been decided, and particularly in the modern area with scotus blog, literally the written opinion comes on the moment that it's being handed down. >> except for the health care case when it was about an hour and a half late arer, i think. later, i think. sorry, didn't mean to interrupt. >> but in general, that's how it happens. >> all right. alan mentioned the recusal issue, and i wanted to get your experience, chief justice o'connor, in ohio and maybe, ken, if you had some thoughts on recusals and either the buddy system or announcing reasons or not announcing reasons for
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recusal. >> i was interested in what you said about the buddy system. that's the first time that i've heard that being mentioned as a potential way to deal with it or an idea. in ohio we on the supreme court if asked to recuse can decide for -- each justice for themselves whether or not they will recuse and just put a written statement on the docket i recuse or i, you know, of after consideration i have decided not to recuse from this case, and that's all there is to it. there is no be explanation or reason given one way or the other. now, there's a movement afoot with the aba to have a model rule for recusal of the judiciary, and it's a work in progress. the conferences of chief justices of which i am a member is involved in a, in the process of examining what a model rule would look like.
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i'm on the subcommittee. actually, i'm chairing the subcommittee to take a look at that, too, and that is a work in progress. what was put out originally by the aba, there were two proposals, two resolutions, and neither one was acceptable to the conference of chief justices. so we are working on that as we speak. i think that it's important to realize that we have 50 different jurisdictions of state court judiciary in this country, and i am -- each state operates a little bit differently for their judiciary. obviously, some judges and justices are elected, some are appointed. they are appointed for different terms. some have retention elections, some have appointments until age 70. be you're a judge in vermont, you don't have to get off the bench in until 90. so, you know, there's a different variety, and i'm always hesitant with a one size
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fits all type of a rule, and that's what we are examining with the conference of chief justices in conjunction with people who are not justices, members from the academic community as well as the lower courts trying to decide what with would be the ideal model rule to put out there to preserve the individuality and be very realistic with the various systems that are in place for the employment of the judiciary in all 50 states. >> well, i would echo a theme that has run throughout the conversation thus far, and that is these overarching values of transparency and democratic society and accountability, and with respect to recusals there are two frequent reasons for justices stepping aside. one i think is truly unavoidable, and that is the prior service. and so justice kagan has, in my judgment, appropriately stepped aside when a matter was before
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with her office, the office of the solicitor general. there might come a point when there is seeming attenuation, but let's leave those kinds of, perhaps, exceptions to the rule aside. but something extraordinary is lost when a justice or more than one justice -- but typically, it's one -- recuses himself or herself, and it is a the ability of the court as a court to function. it is designed to operate as an odd-numbered court, nine justices, and every member of the court should be participating in every case. the extreme case, by the way, occurred when justice tom clark resigned from the court so that his son ramsey clark would not have to, so he wouldn't have to face the issue when his son was becoming the attorney general of the united states. a noble act entirely, but it demonstrates powerfully the first point. the second is one that i really do think that the justices
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should wrestle with and embark on a course of conduct that eliminates this entirely x that is recusal because of financial interest. if one is going to become a justice of the supreme court, i think there's a deal. it's an implicit deal. part of the bargain is you will so order your financial affairs so you can conduct yourself as a justice, so you can do your duty. now, i realize there may come times and there's been talk about one justice because of a death in the family, an inheritance, i realize there may be a process. but i would hope that the justices would move to a system since they're not subject to the code of judicial conduct, the, there is no authority over the supreme court of the united states. so congress having gotten into the situation and saying, look,
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we contemplate that you are going to decide every one of these cases unless you have an elena kagan/tom clark kind of issue. so what are you going to do, but that's an instrumentalist question. the goal should be no justice should step aside because of financial interest. he or she should divest themself as promptly as possible of whatever that interest might be that would prevent him or her from doing his job. >> two points on that. congress a few years ago passed a law that enables all judges to divest themselves without adverse tax consequences. this was a law that had been applied since about 1980 to the people coming to the executive branch. it applies to the judiciary, and a number of the justices and judges have done that. they have to roll over their investment into a tax-free, into a conflict-free account, it's a tax-free transaction. so that excuse which may have
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motivated some people, so i agree 100% on that. there is the separate problem about what do you do about your children who are practicing law, and i think the justices have come to an understanding on that, and they have a policy on it. and i think everybody's comfortable because in part there are so many of them that have so many different relatives around that it seems to workingk tolerably well. >> that seems all true to me, but congress also passed another law in 1974 which made it, which eliminated the old rule which was in order to recuse, you had to have a substantial financial interest. and now it's even one share forces a recusal. and that seems to me to be problematic. and be, yes, it would be wonderful if the justices could divest. i agree with judge starr entirely about that, but i think congress also bears some responsibility for this. and there's a real cost not just in terms of what judge starr talks about when a justice winds up recusing and you don't have the full complement hearing the case, but it's also the fact
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that these recusals go on, big, sophisticated law firms and entities will fight to try to get one justice or another recused or strategize from the front, figure out the childs law firm or something like that. this is extremely unseemly. it's a very problematic thing, and i think congress could change some of the rules and eliminate some of them. >> that statute applies to justices, by the way. section 455. it's not -- whatever the judicial conference can do, the statute does apply, but they get the final word on it. >> before i open it up to general questions, i wanted just to ask each of you to answer one or two quick questions. neal, you talked about the imagine -- majesty of the court and, judge starr, you talked about the uniqueness, i think,
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of the supreme court, and the justices when they're asked about these issues often put it in terms of sort of a supreme court exceptionalism, that the court is uniquely apolitical, unelected, it's unlike any other court and unlike any other branch or level of government, and the justices say we have a unique court, and we don't want to mess it up. i guess what i want to ask you is whether that's irrelevant, the you weekness -- uniqueness of the supreme court in terms of whether they should be able to exempt themselves from, you know, the rules that apply to other courts or other -- >> well, i do share the idea the supreme court is exceptional. i mean, you know, for the reasons i said, let me give you a very vivid example of this. my very first supreme court case was a guantanamo case i was representing, someone alleged to
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be osama ma bin laden's driver. very high stakes, and we won that case 5-3. and i remember coming out on the supreme court courthouse steps, the decision was 200 pages long, i hadn't had time to read it, but i came out on the steps, and everyone said what does it mean and and i said, well, here's what this means, this man accused of being the worst of the worst can bring his lawsuit against the highest man in the country, indeed the world, the most powerful man and win. and in other countries mr. hamdan would have been shot, and more importantly to me, his lawyer would have been shot. [laughter] but that's what the supreme court's about, the ability to do something like that against probably popular sentiment and so much else. i do think we should be really careful when we start imposing solutions on them. i agree that, you know, with certain personalities it makes sense to have cameras in there, but if they are reluctant, they themselves feel it's going to compromise their ability to ask
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questions as justice breyer said, i think that's something we have to take seriously. >> i'd like to respond to the uniqueness and exceptionalism of the supreme court, but what you just said is applicable to every judge in this country. every judge, every court of law in this country is an exception exceptional experience for our citizens to be able to go into court, plead your case and rely on the rule of law. our adopting and acceptance of the rule of law makes our judicial branch of government exceptional from the lowest court up to the very highest court. and there are rules and regulations and expectations of the public that apply to everybody's experience with the courts. so although i understand the bag enough sense and the grandeur and the scope and the consequences of the decisions that are handed down by the u.s. supreme court, that same exceptionalism and magnificence is present in every and should
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be present in every courtroom in this country. and our ability to access the courts is what is so vitally important. and viewing the courts in operation is accessed by our citizens to the courts. and i know access is usually spoken in terms of a party being able to access the courts for redress. and i understand that. but i take the view of access to be so much broader. >> well, i would accept the premise about the majesty of the court, the majesty of the law more generally. the supreme court, as i wrote in my little book a long time ago, in terms of a constitutional democracy, it's fist among equals -- it's first among equals. neal used the term in his first comments, awe-inspiring. i completely agree with that. but the conclusion that,
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therefore, should not be greater transparency, i don't think, follows at all from the premise. and i think the right question is in a constitutional democracy what is in the public interest? that's the focus. and it seems to me that the kinds of concerns that have been lifted up including pete williams' wonderful observations that it really is snippet phobia that has people concerned or a jon stewart appearance, i think the reasonable response to that is grow an extra layer of skin. [laughter] you have life tenure. you are a public figure. and you have the blessing of your compensation can't be reduced. the independence of the judiciary, you have a life appointment if alan morrison's reform proposal isn't adopted.
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you can serve until you reach the age of 92, if you live that long. no one is going to force you to step down. so how about now your giving something. how about your serving the public interest. many of you, and i don't mean to be pejorative here, choose to write books. and when you write books, you choose to go on a book tour. some of you are on the leading shows on television. you must view that as part of the public education process. so you have already, as it were, crossed that bridge of insularity that flows from the exceptionalism and the imagine the i and the awe -- and the awe. but with all due respect, you're not the oracle at delphi telling us what the gods mean. you are a very privileged person with this extraordinary,
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exceptional opportunity. and now could we have a conversation about what's in the public interest as opposed to your own concerns about that may boil down to if it is snippet phobia personal embarrassment? i don't think that's a marley weighty response -- particularly weighty response to all of the school children who will be denied the opportunity their entire lifetime of seeing the supreme court of the united states in action. final thing i'll say is the court, and it used to be a lively area of debate, look to international law or international experience. i think everybody on the court, all nine, would say it's okay to look at what the supreme court of canada has done. well, we have the jury is in. it works. it's worked for 20 years. all these concerns are really quite ephemeral and not well founded. so, well, that's canada. perhaps they're more civil in canada, and perhaps that's so. [laughter] well, let's go to the mother country, think of parliament. they're not so civil in the house of commons, and yet the
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new supreme court of the united kingdom does have cameras in the courtroom. it is a newer experience, but thus far the reports are it works just fine. in the mother country. so those international experiences confirm what the chief justices has said is now the experience of all 50 state supreme courts. so at the end of the day, the argument, i think, for exceptionalism -- while i think it's very strong -- does not carry with it the conclusion that, therefore, there should not be cameras or greater transparency. >> i'd like to add the volume of cases that are heard by the state courts, 95% of the cases that are filed in this country are dealt with in the state courts, 5% in the federal courts, and then you minimize that number by the number that actually are heard by the u.s. supreme court, and if it works in 95% of the other cases to have cameras, certainly the supreme court level but also at varying levels and to certain,
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varying extents in both trial courts and the appellate court in this 95% of the cases, i think those numbers alone, those exappearances alone -- experiences alone offer legitimate justification. and i would never presume to believe that congress should order the supreme court to do this. i am not advocating that one branch of government orders another branch of government to make this kind of monumental, cultural change. i am not advocating for that. but i think we need to realize that the supreme court itself has evolved from etc. original conception -- from its original conception and evolved in both number and gender, you know, and so many other progressive steps that it's taken. and this is just one more progressive step. >> by the way, justice o'connor commented that when she saw that moment when three women came through the curtain and took their places on the supreme
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court, it was such of a moving and magnificent moment. well, wouldn't it be wonderful for us all to be able to see that? [laughter] or the moving, it was extraordinary when john paul stevens was stepping aside, and the outpouring of affection and admiration for a great man, lots of, obviously, disagreements jurisprudentially and constitutionally, but enormous affection for the man and for his remarkable service to our cup on the supreme court. we didn't get to see that either. it's a shame. at least the ceremonial part, and maybe that's an incremental -- alan, if you're an incrementalist, let's at least have some of the ceremonies broadcast. >> well, one portion of justice kagan's swearing-in was broadcast -- >> but it wasn't in the court. >> it wasn't in the court. >> no, it was in a conference room. >> right.
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they don't want to breach that wall. but anyway, chief justice o'connor, you just said that congress shouldn't be telling the supreme court what to do on this, ask one of the questions from -- and one of the questions from the audience is how can congress help move towards more transparency in the supreme courtsome -- court? do you or ore panelists think that congress can play a role or should play a role? or -- yeah. >> well, i suppose -- there's two questions, the separation of powers question and the enforcement question. there was a situation not so long ago where presidents who, after all, are exceptional because there's only one of them, took the view that their papers were their own papers, the taxpayers had paid for them, they paid for the president's salary while he was in office and all the support staff, and
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congress stepped in as a result of richard nixon's impeachment and said, no be, those of richard nixon and those are not personal, private papers of the president. they are the property of the papers to the people. and they can be made public. that could be viewed as an infringement and tried to be called an infringement or separation of powers, and the supreme court said, no, that's not right. you can't do that. there's some minor problems at the edges. and so i don't think that there is a separation of powers constitutional problem with the court saying as said in the recusal statute that it applies to the justices. the enforcement problem is a little harder because if the justices don't want to put the cameras in there, unless the president is going the send troops in there -- [laughter]
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putting cameras in there and having the cameras roll -- but who knows what a response would be -- what the response would be. i would hope it doesn't come to that, but it seems hard to believe, all these arguments here are extremely persuasive, and the life of the law may be experienced, but the logic is all on the side of having cameras in the courtroom. and it's hard to imagine what a poll of the american people would look like today on this question. it's hard to imagine almost anybody supporting it. i remember when justice scalia was sworn in, he said my question now is can i go the home depot, he may have said finish. [laughter] to buy some tools without everybody knowing who i am? well, of course, he goes on television now this all sorts of public appearances. justice breyer goes on television. and so the focus that post of the justices -- so the notion that most of the justices are not in any way known to the
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public if the public is paying any attention is really not the case anymore. and besides f that's the problem, they can focus the cameras as they do in some state courts on the advocate and not show anything but the back of the heads of the justices. i remember the first time i argued a case that had cameras in the -- i couldn't even find the camera. it was someplace off to the side. and surely if i was going to grandstand, that would have been a bad time to do it. >> both legally and practically, i think, the idea of congress mandating the cameras or something like that is a nonstarter. it's not going to happen, and it would never be enforced. and so the real question is what can you do short of that, and i think two things can be done. one is congress can, of course, pass resolutions that urge the court to do this. and share their experience themselves being televised with the justices and what they think, and they could have hearings to try and bring out all of this information and all that.
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and instead of confirmation hearings, they can really start to push for answers from are nominees on what their views would be. but the other thing that can done is, frankly, this. this is a wonderful example of trying to get at the heart of the issue and educating, first, the public and then, hopefully, the court about the fact that the objections don't seem to be as strong as they think they are. ultimately, they're the ones who are going to have to decide this, and based on their idiosyncratic personalities and the interaction among them all -- and very hard questions will arrive, what if eight of them want it, what if one doesn't? do they isolate their colleague? that's a pretty hard set of questions -- >> cass sunstein had a a great concept called nudge. i think congress does have a role in nudging. the fact that we have this transition from i think i can persuade my fellow justices to
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embrace to, no, i'm no longer in favor if that is a fair characterization of justice sotomayor's position be, but when you have my home state's senior senator, john cornyn, teeming up with the illinois senior senator, dick durbin, and saying this needs to happen, when you have individual representatives coming forward who themselves were in the judiciary, congressman ted poe from houston who was a judge and a very well known judge in houston and texas now in the house of representatives that has said this needs to happen. it really is, i think, a matter of focus and leadership, and congress can nudge. i would respectfully disagree, heavens, you know, woe the heavens fall if congress passed a law. i don't think that needs to happen. it's sort of inconsistent with the comity, but it's not a violation of the separation of powers, and if it's the law, i
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think the supreme court of the to united states would obey the law. richard nixon obeyed the law, and if it's the law of the the united states, the idea that you've got to send in the marshals or whomever -- i guess not the marshals, they respond to the judiciary, the article iii branch -- but send in the appropriate folks to effect this is, i think, as chief justice marshall said in marbury v. madison, too extravagant seriously to be maintained. the court will obey the law. but hopefully through nudging, gentle nudging and focusing on what is in the public interest, what do we need in light of the collapse of civic education in the united states, in light of transparency and accountability, why don't you do it yourselfsome. >> okay. there's been a couple of questions about the notion of -- this is, again, involving congress, but whether the
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congress should adopt -- require the supreme court to adopt a code of conduct. one questioner put it as every federal judge is subject to a code of conduct except nine. should the supreme court justices be subject to such a code? >> we don't have that distinction in the state court. our state court judges are subject to the same code of conduct as the lower court judges, so, you know, i'm not sure what the rationale would be except that -- and just let me also say that some of the complaints that have been leveled against our judges on many levels but particularly in the court, have been politically motivated. we are a state of elected members of the judiciary, so we're in a much dicier place, i think, having subjected
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ourselves to the disciplinary process and the code of judicial conduct and the rules that govern the judiciary. it may very well be that the political ramifications argue in support of the to nine members of the u.s. supreme court not being subject because of the misuse of those codes or rules on occasion or the potential for that to happen. >> another question about for chief justice o'connor in particular but generally, are there administrative burdens or issues in maintaining the public electronic access to what the court does, and do you have any security concerns about some of the access that is given on your
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web site? and i know security has been raised by u.s. supreme court justices as well as a concern. but, and i don't know if the issue of costs or administrative burleds has really -- burdens has really been an issue for the u.s. supreme court. >> i don't believe the hardware and the software and the subsequent maintenance would be prohibitive at all. it certainly is not within the ohio supreme court, and we have a very sophisticated system. now, when you say security, i'm wondering if they mean hacking in some way that would change the very content of our opinions, and i have to tell you that that wouldn't happen. we're very secure in access and all of the, you know, those sort of details. the other security aspect would be what was with alluded to with
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justice scalia worrying that he couldn't go to the local hardware store. in other words, are you a recognizable face in your community or across the country, and is that, you know, in some way that you should be concerned about that, but concerns about security go with anybody who is a public servant, a public figure, and there's ways, you know, that those are dealt with. and i know even now the justices on the united states supreme court as well as federal members of the judiciary have pretty extensive security operations with regards to their public appearances which is not what the experience is with state court judges and certainly members of the supreme court of the various states. so technologically i'm not worried about security or breaches, and i'm certainly not worried about the costs that would be attendant to do it. they wouldn't need to reinvent the wheel. there's some excellent, you know, technology both hardware
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and software in place to have this happen. personal security, you know, when you're out and about i don't know that it would be any more of an issue tan it is now -- than it is now with them based on their putting themselves out in the public eye through interviews and book tours and everything else that probably wouldn't, you know, get much more attention. >> there's a question about the public perception of the court. neal, i think you said that the polls show that the court's approval rating never goes below 40%, but it seems like there have been some polls where there's been a decline in public approval. do you think that the greater access would help or hurt the
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public approval rating of the court? there seems to be a feeling it's almost like familiarity breeds contempt. [laughter] that the more the public sees of the court, the less they'll like it. >> that's always struck me as a horrible argument against cameras. i mean, the idea that if the public sees what's going on, that they're not going to like it so, therefore, we shouldn't allow them to see it strikes me as, you know, if they're not going to like something, that's the reason they should see it. so i'm not sure that that's right at the end of the day. i do think that, you know, if i could, you know, if i were able to talk to the justices, i would say i actually think the legitimacy goes up. you've got a great story to tell, something that everyone should see, you know? it's just, you know, i can understand from their perspective they think things are working pretty well, and all they can do is steward -- as stewards of this great institution, i think there's a
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feeling among them that they could only mess it up. and, you know, they think it's our duty to try to explain to them why that's not so, weighing all the empirical evidence to be mustered, but it's not an easy sell. >> i think every advocate who appears before the court at least more than once would say the court works beautifully, the process is a very impressive process, and -- >> certainly while the decision's pending in a case -- [laughter] >> well, i don't have anything up there, so i can speak on the basis of 36 arguments and being up there for almost countless others. the court works brilliantly, and the process is a very serious process. it has its moments of humor and lightness of touch and so forth. you don't get the sense that the justices are taking themselves with undue seriousness. the advocates aren't unctuous.
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it is a very serious process, one that henry friendly described as one at its best of respectful equality. you're professionals doing a very professional work. you're not sitting there reading "green eggs and ham." [laughter] >> tony, i guess the poll question is if the question is do you think the supreme court is doing a good job, you'll likely get an answer if you agree with their opinions. ..
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different interpretations of the first amendment. so, unfortunately the clause now is all political and it's not. it is not at all. it is deeply philosophical to be sure were the different philosophical lenses through which the justices go about their work but they are professionals who in the majority of the time agreed -- they agree on the process. they may not agree on constitutional methodologies. and they are very open and transparent about that. they write books about that. but the work of the court as a court is so deeply misunderstood by the american people and i
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happen to think the cameras will at least be a beneficial step forward. >> i would have to add just one point to that that you're actually right. if there is a characterization of the court is in terms of political characterization. and when the public disagrees with it in an opinion, it doesn't go past the outcome, and they don't look to the discipline that is utilized in order to get to that or the argument to advance. and that's where i think the media comes in. stop characterizing supreme court justices as a republican or democrat and stop doing that with other members of the judiciary because -- >> we don't. we call them liberal and conservative. [laughter] >> that's okay. but i think that when you're attached is a political label to the justice or a judge which happens so often in the state courts, you know for a while we were the republican ohio supreme court of the last couple years
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we've had a democrat, so that has been unfortunate for the journalists but - it's not a responsible way to identify members of the judiciary up by attaching a political label to them. it's a disservice and answer to the confusion. >> most of my practice as representing businesses with and talking about the american public. but a member of the business community have these perceptions you have the liberal justice who is against us and the conservative who is for us. most of the business cases are naim-0. if the business community could see the oral arguments i think would really change the dynamic. >> one quick question. this is for pete and maybe it's for me too. should there be a supreme court cesspool when the justices travel?
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>> when they take their exciting trips to teach a class, the abristle arissa law everyone will eat that up. >> you should be required to go. >> the quote on quote cesspool analogy is to the president for a long, long time in the history president went out and had dinner and did fundraisers around town and no one was there. that all changed when president ronald reagan was shot and now there is a regular pool that travels with the president wherever he goes. around town, around the nation, around the world. to have a pool cover all of the line justices -- granted they don't travel all at the same time -- i just can't imagine that a, it would be logistically that much something what people would want to do, but second,
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how much it would produce material for would be that useful. i would say simply no. >> i will take the trips to italy. with that, we must stand. if this program serves as a nudging tool, that's great. i think it's been a great discussion. thank you so much. [applause] [inaudible conversations] if you missed any of this discussion it is available in
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the c-span video library. go to c-span.org. we have more live coverage coming up on c-span networks. west virginia senator joe manchin and washington congressman kathy mcmorris rodgers. here is a preview. >> the campaign changed our family because of the west
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virginia battleground. we are catholic and of knowing that i was going to be a big part of this could he write that religious barrier? i never thought there was a barrier. everybody worked in the coal mines. and my daughter's father had a grocery store. i never knew there was no classis. i never thought religion was a problem because my methodist friends or baptist friends for all the same. the was a big thing. i will never forget one mind we were watching the news and they were talking about this if john kennedy got effected the pope would run the country. i looked at my mom and i said i don't think they know the
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catholics we know. >> for me the best thing that has happened since i was elected to congress getting married and becoming a wise man [inaudible] it is and what you expect, and it is and what you dream. i sit here today and i may better person because of coal and what he's taught me to be a i'm a better legislator. he's given me a better cash and for what i do on capitol hill. >> how so? >> well, when you first get the news it is some of the most difficult news that you receive as a parent. but i look back on it now and i was immediately welcomed by the disabilities community. people all across this country to have been through similar experiences and first of all,
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just reached out and said it's going to be okay. >> you can watch our interview with senator manchin and congressman mcmorris rodgers tonight starting at eight eastern right here on c-span2. i saw firsthand the tragedies that children face when they are not cared for by loving parents. it was in the sheriff's office where i first witnessed the horrors of child sex trafficking and it convinced me that we needed to do more to protect our youth at risk of abuse. >> like me and many others we become accustomed to being isolated. much more like the victims of domestic violence. by adopting to moving home to home this allows us to easily adapt when traffickers moved us multiple times from hotel to hotel, city to city and from state to state.
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and they go without fear of punishment due to the lack of attention when young people from the population go missing. no one looks for us. i want to make this clear. no one looks for us. >> when they use the term child sex trafficking they think it only happens in other countries or that the foreign children are brought here to be in large cities. in fact, we have learned that most of the victims of sex trafficking are american kids who are trafficked in small towns and large urban areas. if people are not aware of it, they are now looking for it.
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remarks from democratic congressman adam smith of the ranking member of the armed services committee. he talks about american from strikes and oversight and also calls for the closing of the prison at guantanamo bay. this event hosted by the center for strategic and international studies lasts about an hour. >> thank you very much. it's great to be here. i really appreciate the working relationship i have with the doctor and csis. dr. hamre mentioned the level of expertise of csis is enormously helpful. they've been general to the kitchener is with me and my staff as we try to puzzle through some difficult and challenging national security issues. but i want to talk about this
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morning is how we continue to proceed with our fight against al qaeda and their ideology. certainly during my time in congress nothing has changed our policy both domestically and globally more than 9/11. was a major shift that we have been reacting to that event in many ways ever since. we created the homeland security, national director for intelligence invaded the afghanistan and iraq, and as we have gone and tried to figure out how we fight this war and fight and effectively because as we all know it is unlike any battle that we have ever fought in a variety of different ways. what i want to do this morning is set frame for where we are at and where we should go with this point now more than a dozen years after the event. how are we doing, what are the challenges, how do we move forward read and i think the central conundrum and the challenge that we have is we are still trying to accomplish two things. one, it is still a war and there are people who forget that. as i always like to put it al
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qaeda declared war on us in 1996 and they have not changed their mind. the leading that is stopping them from attacking us is not a lack of desire. it is our ability to stop them from doing it. and that really hasn't changed. the organization, the ideology, the groups that metastasized and changed in a variety for a different ways week in some ways but trust me if you were in the national security environment in the u.s., if you look at the dod and the cia, when you get that in the morning the primary thing that you are thinking about is whether or not there's going to be a terrorist attack and what you can do to prevent it. it is a dominating aspect of the national security policy as well it should be. for all the challenges that we have for trying to work through relationships with russia, china, the asia-pacific, what's going on in latin america and elsewhere the number one thing on our mind is protecting this country and the number one threat to that is terrorism. and it is al qaeda and their various offshoots. how do we stop that from
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happening. so we have to fight that war. one of the best ways to fight that war is basically to get them before they get us and that involves military action of one kind or another to read the second thing that we have been trying to accomplish, both president bush and president obama have tried to figure out how to do this is to win the broader ideological struggle basically to stop people in the muslim world of wanting to join the organizations like al qaeda. to find out what role we can play in bringing a greater stability and moving towards a more moderate and effective form of government in the countries. the great challenge of course here is number one, often a conflict with number two. we see that most notably in the brown campaign. undeniably it has been effective without question the ability of al qaeda central leadership to plan attacks against muslim targets has been significantly degraded. it's been be greeted by a lot of things but of the biggest things is we have effectively targeted
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and disrupted their leadership. when your top terrorist in the world or spending pretty much all of their time every day worrying about how they can stay alive, it means that they cannot plot and plan as effectively and that has worked. but the other thing that is very true is that military campaign has also made it more difficult to win that brought a logical struggle. basically to convince the muslim world and others to get away from al qaeda. because the one narrative that al qaeda has bought works is they are the one group of people standing up against western aggression. standing up against the attempt to influence and otherwise attack the muslim world. and to the extent that they are in the middle of a war we are shooting at them that is the end of the narrative. now that is not an argument for not doing at. it's an argument for finding out how to balance it in any war. obviously if you choose to attack you will further hinder
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your enemy and he was also trying to prevent him from attacking you. so how do we strike that that balance clacks president obama when he got in office had a very, very broad and specific vision for how to do that. this was and has now become sort of clich. we are going to set a variety of relationships and the goal basically was a virtue basically was the world was not fond of the bush administration. they view us as to militaristic, self interested, trying to force hour will on the rest of the world. you had renditions, abu ghraib, the war in iraq. well, we are going to change all that and find out how to work cooperative the with the rest of the world to deliver a different message so that we can build a broad support. and i think it is fair to say at this .5 years in to it that that really hasn't worked to it at this point i haven't seen any polling data but if you were to pull people in the allies in europe, the muslim world and
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elsewhere, that the level of support of the united states was probably about back to where it was during the bush administration. that isn't to be the end all of this. we are not trying to protect the national security thinking the number one goal is for everyone to like us. but it is an important element and i think one of the more troubling things is not just a lack of support that we see from some of the allies but domestically. some of the central underpinnings of the campaign to try to come to an al qaeda and when that broad ideological war. they are not has supported in this country as we would like. the long wanted us out of afghanistan. there is considerable concern about a grown attacks. the nsa levels have undermined some confidence. now there is a little bit different reason that one of the reasons why i think we have not had as much success as we had hoped in terms of building a broad support for the campaign and what we ought to do about
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it. i think the reasons why are fairly clear. as i already mentioned the strikes have gotten a fair amount of attention. the number of seville vision to lead to civilian casualties, the world is focused on this. malae to believe the drones are getting in on a fair portion of the blame. it's a weapon of war. i don't think the world feel better if we were launching cruise missiles from a ship. i don't think that changes. i think there is too much of an emphasis on how this is fundamentally, you know, changed things where the drone is more dangerous than, you know, sending in a team or as i said launching a bunch of cruise missiles. i don't believe that pity if anything they are more surgical. they are not the perfect instrument that they are sometimes described to be. i think that is a mistake. we should be clear as a secretary gates was yesterday. it's war. and in war civilians suffer. that is the truth and we shouldn't pretend that somehow
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we uniquely come up with a way to prevent that. we want to minimize it. we are trying to minimize it as much as possible but you are in a war there will be innocent who suffer. we want to minimize that. the drones are one of the biggest reasons. i think another big reason is the fact that guantanamo is still open. for all of the efforts we made to change the interrogation to sort of replace the emphasis on the normal civilian constitutional travels the fact that guantanamo is still open get swept under the rug that we still have 160 people locked up in the prison at guantanamo and i think that has presented an enormous challenge. the other challenges the arab spurring. no president in the history of the country has faced as chaotic and difficult situation as president obama to read every day they are impossible decisions about who do you support, whether you're talking about egypt or libya or syria it
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is a chaotic situation right now. we have seen developing difficulties meeting the relationships with saudi arabia and israel. everybody wants us to do something different. we have brought understandable goals. the trouble was usually as in that case the usually conflict. we want a space government that truly represents the people. we want stability. we want to stop the rising extremism and that is great but what do you have when you have a situation like egypt? mubarak brought stability but he didn't exactly bring democracy and freedom so no matter which way you choose, you are contradicting one of your stated goals. this is one of the problems we have with saudi arabia right now. understandably when the government was removed, however you want to describe what it was the we moved it, that is contrary to the goal of the democracy. but it so happens the space government was removed wasn't
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really terribly space. so how do you strike that balance? that has been an enormous challenge. i would also mention the fact that the federal government here in the u.s. has been unable to function and pass budgets. i could go off in considerable length on this topic. i won't accept to say two things. number one, that the nihilism of the tea party, the basic notion that all they want to do is hurt the federal government. it is a real problem. one of the things the federal government does is it provides for the national security. so if you were hurting our federal government you are hurting our ability to do national security. i cannot imagine what it's like to work at the pentagon right now i was talking to a bunch of people yesterday. the federal government is open. that is how low of a bar we have said. we are open so things are good
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with sequestration every four or five months the federal government shut down there is no way that you can function effectively. whatever you may think of how large the federal government should be is completely and totally unacceptable to set up a situation where it can't function on a day in and a daoud basis. but no mistake about it that hurts our ability to work with the rest of the world. they do not see us as a credible force as we should have them. so, those are some of the challenges that what made it more difficult for us as effectively to advanced policy. a couple of quick things and then i will take your questions. the things i think we need to change there is a need for greater transparency and oversight of our drone strikes. we also need to make it clear why we are targeting people. there are different groups out there and that's the part of al qaeda. some groups are formally affiliated and some adopt the
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ideology. who is who and this makes? we need to make clear that the number one goal was to stop their groups that were plotting and planning attacks against our homeland and against the western interest. there is a lot of other groups that we don't like. they are not plotting and planning attacks against that. at the senate different category. it is clearly self-defense. if we are going after groups that are plotting attacks against us. the thing is it changes. it was pakistan for a long time and then the underwear bomber and the attempt to bomb the plane. of a sudden these attacks are coming out of yemen. and we have to respond to that. i make no apologies that we targeted on war al-aulaqi. he was targeting us. that is the classic definition of self-defense. we should make that case unapologetically. but unfortunately, far too often we don't need it clear why we are doing it. now, i & the need for secrecy.
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but when we don't have to reveal all of it is my personal opinion that whenever we do a targeted strike would rid is a drone, whether it is in the special operations team, with drew days we need to at least or easily explain why. i understand some of the strikes are on the title 50 site for their secret. but that is our decision. we can retial what we want to reveal. we don't have to reveal it all but we have to reveal enough to say this is why we hit this person. and was clearly self-defense. i also think it's good that the president is moving us toward getting us more into the title ten side. so there is greater transparency we also need to be more inclusive of congress in letting them know when the regular basis what we are doing and why. as i said guantanamo is a big part of this. there is no reason we cannot quote that prison. we should pity to would be an enormous step in the right direction. the third thing i think we need
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to do is something that we have done we just need to do it more broadly and make it clear that we are doing at. instead of the u.s. showing up and firing the shot, let us work with local allies to hopefully number one stop in insurgency before it gets started and number to make sure that it's then the local forces that are enforcing the law. we've done as effectively in the philippines. the battling insurgency of a variety of different stripes on their it's been by and large effective in the recent uptick here in the last couple of months. but no u.s. person has ever fired a shot but we have been in trouble in the success. the same is true in the horn of africa. we worked in ethiopia and can kenya to build up the local flight. it's not something being dictated by the united states of america. i think that too would help if
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we continue to build that local partner capacity which as i said we have done effectively and we need to do more of it and let us try to get the point we fund the government on a regular basis. i could get into that again in a greater length but i will leave it at that. i also think the last thing i will say is we also need to better manage expectations as to what the u.s. can do. i think a large part of our problem with allies like israel and saudi arabia they expect whatever problem is, we ought to show up and sold it. there's always been a far greater gap between expectations and capabilities but the gap is growing because the rest of the world is becoming more powerful. the u.s. is not as dominant as it used to be and this expectation that no matter what is going on in the world the u.s. can show up and fix it is a huge problem. during one of the riots in cairo
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this was as a result of the movie that was played that got a lot of attacks in the in the sea and basically the young man said look this wouldn't be on the internet if president obama didn't want it there, which was kind of an interesting way of looking at the world. but we need to make clear that we are not controlling everything and that is one of the problems i had with syria. basically we had an international norm and the u.s. stepped up and said it's an international norm, but somehow it is the sole responsibility of the united states of america to enforce it. that again reinforces the message that if there is something bad happening in the world, it is because the u.s. decided to allow it that we could decide otherwise that is not true. when i was visiting the refugee camp in jordan i was just shocked at the number of refugees but said why don't you stop this. why isn't the u.s. doing it and
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it's because we really are not capable of doing it. we cannot fix every problem in the world and the obama administration understands that. they had continued a more cooperative approach to work with our allies to find out how we solve these problems instead of assuming that the u.s. has to show up and fix it. that is why for instance everything that happens is our fault. either we didn't do enough or we did too much. we pulled out after the soviets failed to the co fell and that led to problems. now we are back in. we ought to set more realistic expectations. as i said, work with local partners and international allies to try to fix the problem. it isn't going to be a long battle. we are not going to be universally loved while we are trying to protect our country from al qaeda and various affiliates. we have to continue to prosecute the war but we make some of those changes to prosecute more
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effectively in a way that will build greater support and give us a chance of winning the long term it a logical war which after all is the most important piece. >> thank you very much. that was quite a force across the most relevant issues today and national security policy so we will be challenged to stay inside of our time. let me try to pull a few of the elements together in the following way. earlier in your talk you spoke on the use of unmanned systems and in the news it is the lethal strikes in particular but i think it is safe to say there's general consensus that the systems will become ubiquitous in other uses. certainly wireless aerial now the land and sea will proliferate as well. what is your sense of how the
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united states, given the struggle that we have had on the struggling side of transparency and perceptions of the systems and different unique cruise missile or f-16 what are some of the ways the u.s. can lead the rest of the world in setting up norms in this area? and >> that is difficult because again i will come back to the central argument from norms that we are looking at is when is the legal strike appropriate? and i don't know that i don't know if we are supposed to call them on man the but the u.s. should be careful because other countries run into these things. true. but halvey use them is going to fit into many of the same conundrums and difficulties of what is inappropriate way to fight and we have seen an syria.
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he's killed a few thousand with chemical weapons. and i agree that chemical weapons are a problem. but you still have that. you are telling someone the instrument that you use is really only one piece and not even the most important piece. but i do think that we can make it clear that what you're doing is fighting a war because i think people have forgotten that. they assume we got them so we are going to use them when it's all part of fighting the larger war to make this self-defense case. you have to make the case. it's right there for us to make. when you read the amnesty international and the other reports, the main complaint is that they don't know. they go from saying they don't know to saying they do know which is an interesting transition. you are not telling us why you
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are doing this. therefore we know that you are doing it illegally. the point is transparency and oversight. that is the number one biggest lesson. and i think that is true of any military action. you get into this buying issues and all of that. in the world has changed in terms of information as we've all known. i can't begin to articulate how we manage all of that. but on the using it as a weapon of war we should stick to traditional international norms. >> that goes right back into the use of military force and the president has said that he's interested in working with congress to modify. what are your thoughts on how it is applicable today given as you said the movement of the flight from pakistan to other theaters. and how of the congress can help president craft a way forward. >> i think it is very much still applicable and it's gone through
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a fairly tortured history because originally it was tied treacly to those that perpetrated 9/11 and a sort of more from interesting court decisions and to more broadly and then we codified in congress in 2011 that basically allowed it to be those groups that threaten the associated forces. and again it is within the self-defense context. i would say it is unlikely that we are going to modify because i have walked down that road. you change a punctuation mark in that thing and you're looking at ten years worth of lawsuits from both sides. frankly. people must admit this. people are interpreting the congressional intent as if we move as one body. and about 535 different intense. but that's the rescue change dewaal aumf. that is why the white house was nervous as hell when we did it in 2011.
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it wasn't so much that they wanted more or less authority but as you change it he didn't give rise to different actions. so it's probably going to stay where it's at. and then the larger question is al qaeda and different groups move around. that is why the clarity. there is a lot of different groups out there. hundreds for that matter that affiliate with a uniquely violent and and nihilistic ideology of al qaeda. but there is only a few that were plotting and planning attacks against us. those are the ones we need to focus on. afghanistan prior to 9/11. a lot of it moved to pakistan and to yemen. somalia is a bit of a tough question. we now have concerns about what is going to happen with aqim. we haven't reached that point. i think he consisting aumf gives a sufficient flexibility to follow those targets and modification would cause more trouble than it would solve. >> one more question and then a
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fair warning to the audience to have your questions ready. as the ranking member for defense has given inappropriate comments about the effect of the shut down and the continued uncertainty on the defense and national security community, what is it that you made your committee are thinking of being able to do in this year and in this environment to help on both the overall strategic front and creating some kind of pat way forward for the defense community in particular? >> it's very difficult. we are looking in a variety of issues on the authorities to try to give a greater flexibility will to the war fighter as they confront to deal with the challenges they face. we continue to be strongly supportive of the special operations command and the special operations command can be a key piece of this ally development basically building
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partner capacity. when they refer to it as a preparation of the environment. the answer to that question is we are trying to prepare it so we don't have insurgencies and that's training security forces, making sure governance is happening to try to build local populations and support what we've done in the philippines to try to emphasize that. the big war approach in this ideological struggle send in 100,000 plus western troops into the country and it's not a winner. so i think trying to focus on that, building a partner capacity coming using the asymmetrical tools that we have as long as we are moving from crisis to crisis one as you know
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better than anybody is just tough to function when you don't know how much money you have or where to spend it. >> if you would like to ask a question and i ask that you give your name and affiliation. we have one right up here. wait for the microphone for a moment. >> thank you for your restraint in describing the political situation today. i would like to go back to the ideological struggle the defense released a report to donald rumsfeld in which it said the united states cannot win the war unless we win the war on ideas and we are losing the war of ideas. we have a great propaganda. during the cold war we did well and gorbachev to take down wall.
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why are we so enacted almost derelict in not having some kind of a broad propaganda campaign to discredit and do all the things we need to do. as you know the only thing the state is trying to do is turn a couple of years of the internet from becoming al qaeda. why has it been impossible to mount the ideological campaign that is absolutely essential and actually could have a big dividend for a relatively small amount of money? >> first of all a great point again. to underscore the fact we are not winning the ideological struggle. i think it is a great example of that because of katydid you have got all al-assad, not popular by any stretch of the imagination. you have got a lot of sort of moderate democrats who want to overturn them and create a better style of government, not russia. that's an important ideological
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struggle and that is one of the challenges we have. we should not approach this by saying we want the war to be like us and so we have to stop. it's not the same as the cold war it's much more central to the way they want to govern the trying to connect them to be like us isn't going to work. we tried that for a while but and syria you've got the moderate elements and then you've got al qaeda and there are foreign fighters coming. they're showing it in syria to fight for the free syria movement come to fight for freedom and democracy that i am unaware of it and that gives you an idea that we are not doing as well as we should.
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that is the problem that makes it hard. i can tell you how difficult it is when you don't have much credibility. in greek and painful detail as a matter of fact. for a variety of different things i thought was very interesting in egypt with that both sides were claiming that the other side had u.s. support. the people that were opposed to the muslim brotherhood were claiming that the u.s. was behind them and i forget the argument, but it's basically if it appears the u.s. is involved in something it is by definition not credible. so how do you handle that? and i do not think that we have been as creative as we need to be. the most effective thing is negative campaign. the al qaeda movement has killed more muslims than any other in the world. they are not good. we can very clearly show and to
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some degree in iraq we were successful in this. it was driven by the fact that these violent people are terrible. so we need to use that more effectively but i find the challenge is in the transparent world how do you do propaganda? we haven't figured that out. propaganda is in many cases dependent upon the probability of the hidden hand. there are no hidden hands. that makes it much more difficult. one of the big problems that we have with the whole nsa people have this perception and a lot of those articles were just flat wrong about what we were doing. we are not doing what they said. so i think the credibility is a challenge. the most effective way to do this is partner capacity. the most effective messengers and the way that we ought to approach it is to get moderate credible elements and there are
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some groups out there doing this with in the muslim world. they have to be the messengers. if we are the messengers' it is not going to go over well so that is where we should focus our efforts is building that capacity for the message. >> james kennedy from the open society foundation. as we continue to expand our efforts we might counter instead of achieving stability. and at times like we will continue to fund units that are either engaging the customer behavior or perceived as questioning the eight year and as we do that, we might be losing the second challenge of the ideological battle. so how do you strike that balance and where is the congressional oversight program like the 1206 coming into play finding the right balance? >> that i think is one of the single biggest problems that we have. to begin with, there is no
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government isn't going to have, you know, something that people can criticize. no matter who you are backing or where it is going to be an argument that they are not as open, they are not as free or fair as they should be. i think that with things like the amendment to limit our ability, you know, if you have situations where the military's are committing atrocities we have to pullout and if there's a space government overthrown we did that in what mali and egypt. i don't have an answer for that question. i will say this. i think disengagement is the wrong approach. if you do anything bad we aren't going to have anything to do with you. it is more harmful than helpful. we need to continue to emphasize the fact that we are much more aggressively trying to push these countries and these allies to have greater respect for
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human rights. to be more space. we've done that in a number of different places that is never going to be perfect system if that is what people are concerned about i love that amnesty international came out of our study of the efforts. where is the amnesty international study of all the people killed and how indiscriminately they've gone after civilians? it's not even comparable. to say they are not trying to do that now let's have a balance and when all the people we are fighting have killed in far more innocent people and we have and they do it intentionally as a part of their plan. so, i think that we have to also and as the alternative. if we say you have to support government and have no rules for
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the other side that is a propaganda war that you can never win. >> you expressed your belief as the killing of anwar al-awlaki was justified. how about the drone attack on his teenage son who was also an american citizen? >> i'm not familiar with the specifics of that is a fine example of why we need to be transparent and explaining the reasons for our attacks. if an attack happens we have to be at least a one justification and even in the case. the event released the justification. the have alluded to it in some of the speeches given. i don't have any bite -- doubt there are drawn strikes that were mistakenly made.
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they're actually wasn't, you know, and for whatever reason they misread the target and what they were doing. they didn't know what they were dealing with. so why don't have an answer for that and i don't know the specifics about the attack. we get regularly briefed. i apologize to the top of my head i don't remember the details of the different tax but i have at one time or another been briefed that is a bit of a misconception. there is oversight in a sense. they have access to information. part of my problem presenting this is that this classified information. even if i did the answer to your question i couldn't give it publicly. and that is where i think the administration could be more transparent.
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they could keep a lot of it classified. understand the reason for that but they choose to release enough that people say here is why we did it and that there is a justification because i think as i said in the amnesty the biggest part of it is no transparency. we don't know. the administration says that it was. personally, i believe them but the broad public as to see the information. and understandably, is skeptical so transparency would be helpful. amol the oversight the congress is able to exercise as helpful we cannot be transparent about it either. that is just us doing our oversight in the executive branch. we can't go out and talk about it. >> when the time when it's this point very hard on transparency is quite a nice report. yes, right here. >> in the we've come i was just
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wondering you said some of the documents might be mistaken. i was wondering what you advocate for repercussions in both of those cases? and also, there is critique that oversight and transparency would interfere with national security decisions. if you could comment on that as well. >> nope. this is war and one of those things people don't understand. in war as i said up front civilians suffered. they always do. part of the problem with some of the arguments on the unmanned vehicle campaign is that we have tried to argue this is different because they are more discriminating. and all these things are true. it is somewhat better than cash. it is still war.
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it is still war in an area with civilians that are going to be formidable. so, you know, we went through this in iraq and afghanistan in different situations where there are certain times in the perfect case where the joint base rule is the accord soldier who killed 17 afghan civilians. that is a crime. they've been prosecuted and convicted. but i don't see any evidence of that level of criminal intent. but it's war and in the war mistakes will happen. i'm sorry. the second part of your question? >> [inaudible] >> there is that balance. but again, i think the administration and all administrations have this attitude that we could share nothing. if we share any information and we instantaneously are going to be vulnerable. but it is particularly ironic in this day and age when it comes out anyway. part of the justification for not talking to congress is we
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don't trust the congress not to leak it and when the congress learns about we've needed in the paper from the administration. >> wouldn't it be better to uphold it in the first place? like am i understand the sources and methods and served on the intelligence committee. you want to protect that but how does it make it more vulnerable to simply cannot in one paragraph and say here is what we know. this is why we took this shot. it was in self-defense because this person is affiliated with this group. they were plotting attacks against western targets. i am also aware of the fact if you do that -- then you can see it's classified. but i think the administration -- again president obama's speech, mr. brennan gave a speech and jade gave a speech which ultimately sort of lead this out. the administration i think
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sometimes believes the assemble all the different facts, give a speech and then it is done. we explained it to you, leave us alone. a it is a constant process of justifying and explaining your actions. a message has to be repeated. as a campaign person i always said that those of us working closely on the campaign are absolutely sick to death of our message course when we are trying to reach. you can't just sum it all up and say okay i told you. you are supposed to believe it from how about right here in the middle. >> congressman, you keep saying that we are at war. and we are. but your remarks remind me of what the general said about the u.s. involvement of the vietnam
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where we may tell more of their soldiers but eventually, we will tire of the war. the fact of the matter is budgets are down and it's a law of the land. how much longer can the united states afford to be fighting off these war all over the world against an enemy that will continue to respond as long as we are prosecuting these efforts? it just seems we have a limited amount of money but our prosecution just needs ever more announced. how much longer can we prosecute the war as long as it takes is the answer. this is not vietnam. this is not a domino theory abstraction. this is a group of people who as we sit here today are trying to figure out how to kill as many of us as possible and we need to figure out how to stop them. the good news is is not quite as expensive as you described. hopefully what we have learned
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in the last decade and as i said earlier is full-scale invasion are not there and believably extensive and successful way to prosecute the war. but if we build partner capacity. if we maintain our intel, it is far cheaper to do this than we realize. we've built an excellent infrastructure. we are tracking the amana buying and large we have been very successful as we know at disrupting those al qaeda that are targeting us. the larger problem is the ideology, the metastasizing of it and the problems and in country after country that has poor governance that just creates a huge opening for the extremist ideology. that is a different problem. that's a problem frankly that the rest of the world are responsible. they are plotting an attack against us. we can't give up on that. we can't say we are just going
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to stop them and see what happens. i think we can do it in a cost-effective manner and we have to. now it would be vastly more easy to do if we would get rid of this ridiculous isolationist the the federal affirmative awful and we must cut it. people said that he party is running this country grover norquist who said he doesn't want to eliminate the government he wants to shrink it down so he can drown it in his bathtub. that is the ideology that they are governing on and we can argue all day long about how good the government should be. there's plenty of things wrong with the party. but when you come to the point that you consistently taken the crap out of the federal government by not passing the appropriations bills, threatening a shot down every four months, threatening not to raise the debt ceiling because the would stabilize the economy, that undermines our ability.
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now, i hope that at some point we will get over this. that makes it more difficult but it's a an important problem to not walk away from. >> over here. >> congressman mcconnell, mostly retired. what about the domestic use of drones clacks what are your thoughts? >> that is a difficult issue. i will sidestep slightly by saying that is not the topic this morning. i'm more focused abroad. we have had the issue and it's not just drones it is cameras on the major controversy in seattle right now that they wanted to put cameras up in the port of seattle for. there's been counties and cities and people are concerned about
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it. the policy implications and all that is a big challenge. you think that the people that we've captured and the bombing in boston, the fact there were so many cameras around that enabled us to fairly quickly get their. its security verses liberty. people have been the dating that for a long time and it is getting increasingly complicated due to technology. >> right in the back. yes. >> i'm a u.s. army colonel who retired working for the interstate traveler in michigan now. i have to say i think it is the most brilliant objective description i have heard of how we use drones and why we use them and the whole thing of trying to deal with the terrorist threat.
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now my question is this. my feeling is from hearing president obama's speech on the national security in on your presentation this morning that his idea is using them now for the reason they articulated of war within the work to the targets that are targeting us. but you gave such a great description as he has, too of the long-range problem encountered in the ideology. do you believe that his intention which was implicit in his comments the war on terrorism like all must end. implicit in that is dealing with the ideological part by phasing
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out the drones and turning this over the handling of al qaeda over to police forces and the collaboration among the police forces and intelligence agencies -- >> i think that is the intent. this is a challenge and one of the battles that we fight in congress. senator gramm is on the exact opposite side of this, for instance. this is the controversy over the capture and libya. they basically think that we should treat this as a war. it should be in military custody. they were aggressive trying to see anyone recapture affiliated with these groups should be in a military custody domestically. basically antiyour arguments for that is that there is perceived there is a greater value that you can get out of questioning somebody in the military custody
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and questioning them in a traditional law enforcement setting. i would debate that a little bit. they've had a reasonable amount of information and the traditional law enforcement setting. but even granting for the moment maybe there's a little bit more information you can get out of the military custody setting that downside of the perpetual war approach is what is being missed and the fact of the muslim world, the u.s. citizens get tired of a perpetual war approach. to the extent that is closing guantanamo and the of the thing i didn't mention that i meant to, we need to move towards getting rid of indefinite detention. getting rid of the notion that we in the u.s., uniquely among all the countries have no right to grab anyone in the world and hold them without charge indefinitely. now, we may have a justification for that. a understand the benefit of that. but the downside in terms of winning that a broader ideological war is enormous and
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cannot simply be dismissed. as much as i would like -- i wouldn't actually like to live in this world but as much as some people would like to live in the world once we decide something is important to as everybody else has to fall in line. that is in the way that works. we have to find a way to work with them and one of the important things we can do is work back towards the clich -- cliche and the system that was the envy of the world. the extent we get back to that it helps in the broad is the logical war. >> you mentioned closing guantanamo a few times. i did want to make sure you had an opportunity to talk a little bit about that. there are various ways that one can do that in combination or in cingular transfer release movements to the u.s., civilian or military u.s. base facilities.

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